There are ten major ways that the new Indian Act affects eligibility for status and band membership. In all cases the relevant sections of the new Indian Act are referred to in brackets.

5. The Definition of "Child"
(S.2 (1) & S6)

The new definition of "child" in the Indian Act could also mean you are entitled to status.The definition of who is considered a child for the purposes of the Indian Act has been changed for all purposes within the Act to include children:

a. whose parents were legally married or not married,

b. who were adopted under provincial law,

c. who were adopted under Indian customary law.

The Indian Act does not clearly say what legal rights to status adopted children have. We believe that you will be able to obtain status under the Indian Act if you are a child of Aboriginal ancestry who was or is adopted by status Indians but where you would otherwise not be entitled.

Until this issue is clarified, we advise you to assume that children under these circumstances are entitled to apply for status upon their adoption by status Indians. If you were adopted by a person who is entitled to be registered, you are also probably entitled to apply for and receive status as a registered Indian under Section 6 (1)(f) of Section 6 (2) of the Indian Act.

6. Band Membership Codes (S.10)

Bands can now establish their own membership codes and as long as the procedure set out below is followed, the Minister must approve these codes. With a few exceptions, a Band's membership code replaces the Indian Act in determining who can become and remain a Band member. After a Band takes control DIAND no longer has any responsibility for maintaining the Band List. This means that once a Band formally adopts a code even people who have an automatic right to Band membership upon application for status must apply for Band membership to the Band itself, although the Band cannot normally delay or prevent those people from receiving membership.

To adopt membership codes Bands:

a. must give appropriate written notice of the intention to adopt membership codes (codes can't be kept secret)

b. must get approval of the code by a majority of Band electors

c. must notify the Minister of DIAND of the code taking effect (at which time the code becomes law) must not take away someone's membership by reason only of a situation or action existing before the code takes effect

d. must not deny rights to membership gained by people who can reinstate unless it is for some other reason than having the right to reinstatement

e. may specify membership rule review mechanisms

f. may adopt their codes or return control to DIAND at any time

The voting age for Band members has been lowered to 18 years. To vote in Band elections and on surrenders of reserve lands a person must be 18 years old, on the Band List, and normally resident on the reserve.

Unless the Band council passes a by-law to expand the list of eligible voters to all adult Band members, the only people who can vote on membership codes are "electors": they must be on the Band List, over 18 years of age, and normally resident on the reserve.

A Band may choose to require a majority-vote of all band members over 18 years for the approval of membership codes, but it must pass a by-law to that effect. Otherwise, only "electors" may vote. If you are entitled to status and band membership but are not resident on reserve, you should check with your Band to find out if a by-law allowing all members to vote on membership codes has or will be passed. If such a by-law is passed you will be entitled to participate in a membership code vote once you are registered.

Do you have to be a Band Member?

Some people may wish to apply for registered status but not take automatic band membership if they are entitled to it. At present it is not clear whether the Registrar will allow this and the official application form prepared by DIAND does not provide a section to make this choice known.

Even if your name appears on a Band List, you should remember that this does not mean you have to be an active Band member, receive Band benefits, or be represented by a Band or other reserve-based Indian organization. For example, you could still be represented by one of the NCC's affiliates. It's up to you.

If you wish, you can write a note attached to your application form indicating that while you wish to be registered you do not want to be placed on a Band List.However, you should remember that if the Registrar allows you to refuse Band membership, the ability of your children to get Band membership may be affected, depending on the kind of Band membership code adopted by the Band concerned.

8. Residency On Reserve
(S.18.1 8 81 p.1 and p.2)

Dependent children who are not Band members can reside on the reserve with their parents. "Dependent children" includes any child who is in the legal care of an adult Band member, whether or not that child is financially or physically dependent on that adult. This usually means any child under the age of 18 years old.

Spouses (husbands or wives, including "custom" or"common-law" spouses) who are not Band members do not have a guaranteed right to reside on a reserve. Band councils can regulate the residency of all individuals on reserve by passing by-laws, although Bands must apply residency rules fairly and Bands must allow a resident Band member's dependent children to reside on reserve.

9. The "No-Opting-Out" Rule
(S.4 (2))

Before Bill C-31 was passed, the federal government allowed some Bands to suspend certain sections of the Indian Act, including membership clauses such as section 12 (1)(b). This"opting-out" allowed Indian women who married non-status Indian men to retain their status. Bill C-31 has now confirmed that when Bands "opted-out" of 12 (1)(b) or other sections, this was legal.

Under the revised Act the governmentcan no longerexempta Band from the new status and membership clauses which allow for reinstatement. A Band cannot choose to exempt itself from the new registration and membership provisions. Under the new Indian Act no one, not even the Minister or the Governor in Council (the Cabinet), can exempt a Band from these provisions.

10. Loss of Status or Membership
(S.10. S.64 (2) & S.81 (p.3))

Under the old Indian Act Indians could be "enfranchised" or lose their status and band membership. When this happened, the person sometimes received an amount of money equal to one per capita share of the assets of the Band.

Under the new Indian Act status cannot be given or taken away for any reason. This includes Indian children who are placed with foster parents or when adopted. If they are entitled to be registered they do not lose their entitlement.

Band membership can be taken away under a Band's membership code. A Band can also allow the Minister to provide money to a person who has his or her Band membership taken away. In order to do this, the Band must pass a by-law which sets the amount of money to be paid out of the Band's funds. No person losing Band Membership can receive more than one per capita share of the Band's total capital moneys.

The new Indian Act also prevents some people who are reinstated to Band membership from receiving Band moneys and, depending on the action taken by Bands, may also deny reinstated Band members some programs and services. Guidebook #2 in this series will explore these rules in greater detail.